Tuesday, 22 October 2013

We are all, or should be,
fascinated by the resurgence of interest and activity in the now infamous Plebgate saga.

For anyone who doesn’t recall, former
government chief whip Andrew Mitchell MP was reported by TheSun newspaper to have
been extremely rude to officers of the law who required that he dismount from
his bicycle on leaving Downing Street one day last September. Mr Mitchell has always denied the allegation that
he called the police “plebs” and accordingly began a libel action against News
Group Newspapers Limited publisher of TheSun.

The proceedings have taken on a
significance of their own because of actions, not by the police, but by
judges.

One of the new rules introduced
in the course of the Jackson reforms,
most of which were implemented on April 1 (yes, if only) was the requirement
for parties to higher-value multitrack
litigation to file and exchange costs
budgets at an early stage of the proceedings.

The process is one of the most
important ‘reforms’ aimed at controlling the amount of costs that litigants are
able to recover from an opponent, irrespective of how much they might
independently be liable to and entirely willing to pay their own lawyers.

To give the provision real teeth,
somebody came up with the idea of a swingeing sanction that if you don’t file
your budget on time then even if you win the litigation, you are not allowed to
recover from the losing party anything but fees paid to the court at various
stages of the litigation.

In other words, the winner can’t pursue
a claim at the end for the costs of his solicitors, barrister(s), expert
witness(es) or other expenses of litigating the case.

The lawyers amongst us don’t need
any explanation beyond that to start shuddering but for others let’s put it in
context. One estimate I have heard,
gauged by reference to the interim costs order made in favour of Peter Cruddas
after winning his libel action against The
Sunday Times earlier this year, is of a minimum of £500,000.

So, Andrew Mitchell’s solicitors
failed to file the cost budget in time and Master Victoria McCloud refused
their application for relief from
sanctions. An initial appeal was
dismissed, the High Court Judge having no difficulty in upholding Master
McCloud’s decision.

Little wonder when you read one
or two extracts from her judgment, notably:-

‘It is a helpful illustration in this case
to consider that, in order to find time in my diary to list this application for
relief within any reasonable time, there being objections from Mr Mitchell’s
side to a long wait, I needed to vacate a half day in my list which had been
pre-allocated to deal with claims of persons affected by asbestos-related
diseases. There is an expedited list for
such claims for because life expectancies are often very short. The impact, therefore, of the admitted
breaches in this case was that the claims of those litigants which could have
been listed in my diary were not listed, and in their place we have an argument
about non-compliance with rules in this defamation claim.’

She went on to explain that it is
quite simply ‘the right of other
litigants to have a fair crack of the
whip where judicial and court resources are very limited, and the right not to
be delayed while the courts dispose of matters which ought not to arise in the
first place if rules are compiled with’.

Master McCloud made it clear that
she wasn’t saying that prejudice of this nature was a pre-requisite to
enforcement of the rules but it is a compelling illustration of the practical
need for litigants not to waste valuable time and resources by failing to
comply with the rules.

All that said, this irresistibly
noble approach doesn’t address the fact that this is an incredibly harsh
sanction, irrespective of where the pain is felt.

Because, whilst Mr Mitchell may
win his case and otherwise have the prospect of recovering from a company well
able to pay costs in excess of half a million pounds, the current effect of
this decision is that he will in no circumstances get no more than about £2,000
towards his costs.

Little wonder that there is a
second appeal pending and booked in to the Court of Appeal for next month
before a bench that will be presided over by
Master of the Rolls, Lord Dyson, himself.

On the one hand you have a man
who has been vilified – he is entitled to say quite incorrectly – running an
appeal because he says he has again been harshly treated notwithstanding an
undeniable breach of the rules.

From another perspective you have
the first hearing of an appeal against one of the most draconian sanctions that
has ever appeared within the rules governing civil procedure in English
law.

Some may say that Mr Mitchell is
appealing, but then again that he is anything but. Seriously, there is a risk
that (quite possibly very unjustly) this man enjoys no sympathy inside or
outside the court. That is a worry, in
case it in any way influences the decision on the appeal.

It is a concern because this
sanction is utterly disproportionate. I
don’t say that as a lawyer who is fearful of being in the same position –
though naturally I am. I say it as an
ordinary citizen who sees this penalty as a sledgehammer to crack a nut.

The application of the sanction
is surely correct but the sanction itself is wrong. I don’t immediately understand how anybody
but the Rules Committee can deal with that fundamental problem.

It may save some people
embarrassment if meanwhile Mr Mitchell is no longer seen as an out-and-out bad
guy, or even if The Sun should happen
to settle his claim in the face of a mounting impression that the police have
misbehaved themselves - although that would do nothing to fix the mess that
Grayling and other zealots have created.

Saturday, 12 October 2013

Most lawyers are familiar with
the maxim de minimis non curat lex
and the principle that courts should not focus on trivia when applying the law.

Our present government, with its
many-pronged attack on accessibility to the law, mainly by removing means of funding,
has brought a new and sinister significance to the Latin phrase that translates
literally as the law does not care about
little things.

As law centres close, barristers
chambers and solicitors firms go bust, we wait for the next civil litigation costs
announcement from the Ministry of Justice following the Prime Minister’s
shuffle earlier this week.

Helen Grant has left after
thirteen months as Djanogly’s successor, headed for the Department of Culture,
Media and Sport (work that one out) and is
replaced by Shailesh Vara who, unlike our esteemed Lord Chancellor, is a
lawyer. Formerly a solicitor with CMS
Cameron McKenna, Mr Vara practised in London and Hong Kong.

Is he to face the challenge of
presenting the government’s response to what is no doubt perceived as the
extremely unhelpful report from the House of Commons Transport Select Committee
as part of Grayling’s attack on - sorry enquiry
into - the “compensation culture” which as one of its products has us
branded “the whiplash capital of Europe”?

Regular readers and avid
followers of the debate will recall that the committee chaired by Louise Ellman
MP made some thoroughly uppity findings about the unreliability of information
promulgated by insurers and the government as well as their unhealthy collusion
to the exclusion of claimant representatives.

For a reminder of the select
committee’s key findings, and extracts from an revealing roasting of the top
boys fielded by the insurance industry, see Hey diddle diddle.

The so called “whiplash epidemic”
was confidently regarded by liability insurers and their chums in Whitehall as
the cast-iron excuse to crank up the financial limit of the small claims track
to at least £5,000. This is a level at
which, everybody within the industry knows, a very substantial number of
personal injury claims – the vast majority of them genuine – would become
litigation within which recovery of legal representatives’ costs is virtually
impossible.

Naturally, this suits liability
insurers because they save not only on costs but also on damages where they are
dealing with unrepresented, uninformed people.
I considered that landscape in some detail in an article last month – Crash and Capture - reproduced at the
link with the kind permission of Solicitors
Journal.

The transport committee report
was not well received in the summer. It’s
been left to gather some dust, probably in the hope that people will forget key
findings that there isn’t a whiplash crisis and that in fact an increase in the
small claims track limit for personal injury cases would probably lead to more
fraudulent claims and a resurgence of the claims management companies that the
government has been working so hard to stamp out in recent years.

The latest signs are worrying for
the claimant lobby. Yesterday we were hearing and reading a lot of publicity
about raising the age for learner drivers, all ‘in the interests of saving many
lives’. There is also a mention about
savings in insurance premia for society generally.

Undoubtedly what the government
is primarily concerned with here is a saving for insurers in operating
costs. Whether or not that leads to any
saving in premia is a moot question – the Transport Committee did not seem
convinced and we have yet to see any explanation from government of how it will
monitor cost reduction.

The truth is the government is
not interested as long as the insurance industry can maintain a swell of
popular support from those who want the cheapest now, don’t notice the plight
of innocent victims and above all fail to recognize that they could be next.

As long as a portion of our
largely shamed financial industry continues to generate revenue for the Treasury,
and there is no silly talk about ending agreements to fund claims against
uninsured drivers or to continue cover to householders in flood risk areas,
then this administration seems likely to stand by.

Can we guess what view a former City
and Hong Kong lawyer, acknowledged rising star of his party – a former
assistant whip indeed - will take of Five grandin the overall scheme of things?

Is he about to show us that the
law does still care about little things – and people?